TERMS OF ENGAGEMENT BETWEEN FUEL TO FLY (PTY) LTD AND THE CLIENT DEFINED IN THE PROPOSAL
THE PARTIES HERETO HAVE AGREED WITH EACH OTHER AS FOLLOWS:
1.1 In this agreement, unless the context clearly otherwise indicates:
- “Acceptance Date” means the date of acceptance of this Agreement by the Client on the relevant FTF electronic format/platform;
- “Agreement” means this agreement and all annexures hereto;
- “Business Day” means any day except Saturday, Sunday, or officially recognised public holidays in the Republic of South Africa;
- “Confidential Information” means any and all information that is disclosed by one party to the other party and that relates to the parties’ business relationship hereunder, including, but not limited to, information relating to the business methods, finances, systems, proprietary interests, client databases, domain and mail-server information, access to email accounts, marketing plans and any and all information exchanged between the parties pursuant to this Agreement;
- “Effective Date” means the date reflected on the first invoice presented to the Client by FTF in relation to the provision of the Services, which date shall indicate the commencement of the Services, notwithstanding the Acceptance Date;
- “Fee” means the total amount of consideration payable by the Client to FTF for the performance of the Services, as further described in clause 7 below and detailed in the Proposal;
- “GDPR” means the European Union’s General Data Protection Regulation under Directive 2016/679
- “parties” means FTF and the Client and “party” shall mean any one of them, as the context may indicate;
- “POPI” means the South African Protection of Personal Information Act, 2013, as amended;
- “Proposal” means the extraneous draft statement of work created by FTF and presented to the Client after having first engaged for the procurement of the Services from FTF, which includes any applicable Service deliverables, an indication as to whether the Services will be performed on an ad-hoc or an ongoing, monthly basis, and the Fee for the detailed Service deliverables to be rendered, which is to be confirmed between the parties at their initial consultation;
- “Prospects” means possible prospective clients of the Client;
- “Prospect Data” means the data related to Prospects which FTF acquires pursuant to its rendering of its Services, including but not limited to email addresses, Prospect names, company names, company regions and email response data.
- “Services” means those email marketing and data analytics services which are to be rendered by FTF to the Client, as further outlined in clause 4 below and in the Proposal;
- “Suppliers” means any entity that renders its services to FTF or any independent contractors who FTF contracts to work on the Services;
- “Termination Date” means the date when the Services have been completed by FTF for the Client, and as confirmed as completed by FTF to the Client; and
- “VAT” means Value Added Tax, as levied under the South African Value Added Tax Act 89 of 1991 (as amended).
1.2 Words importing the singular shall include the plural and vice versa, words importing any gender shall include the other genders and words importing persons shall include partnerships and bodies corporate.
1.3 The head notes to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
1.4 If any provision in the above mentioned definitions and/or the preamble hereto is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in this clause 1, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement.
2. DURATION OF THE AGREEMENT
2.1 The Client appoints FTF to provide its general, email and data analytics Services and FTF accepts the appointment.
2.2 The Agreement will come into effect on the Effective Date and will continue until the Termination Date, unless terminated earlier as provided for in clause 2.3 below.
2.3 This Agreement will terminate in the event that:
- the parties mutually agree in writing to terminate the Agreement from a particular date;
- one party gives the other party no less than 30 (thirty) calendar days’ written notice of termination; or
- either party becomes entitled to cancel this Agreement in terms of clause 13 below, pursuant to an unremedied breach of this Agreement.
2.4 Upon termination of this Agreement for any reason:
- both parties will remove and delete all intellectual property and confidential information of the other party’s which may be in its possession, or return it to the rightful owner thereof, as the case may be;
- both parties will hand over any partially finished work or working files belonging to the other party; and
- neither party will represent itself as being affiliated with the other.
3. RELATIONSHIP OF THE PARTIES
3.1 The relationship of the parties is governed by the terms of this Agreement and nothing contained herein will constitute a partnership, joint venture, agency, employment relationship or similar type of agreement between them. No party shall, by reason of the actions of the other party, incur any personal liability as a co-partner to any third party.
3.2 FTF is at all times an independent contractor who may provide competing services to the Services.
3.3 The Client understands and agrees that the Services require a collaborative exchange of information and/or approval from the Client. In the event that such requested information and/or consent is not provided timeously, the Services in turn will be delayed and FTF cannot be held responsible for such delay.
4. THE SERVICES
4.1 When the Client first engages FTF for the provision of its Services, FTF will draft the Proposal for the Client, detailing the particular Service deliverables and Fee applicable for the Services as requested (including the payment terms applicable to the payment of the Fee by the Client).
4.2 Once the Client has agreed to engage with FTF through the acceptance of the Proposal, FTF shall schedule consultations with the Client in order to:
- onboard the Client;
- obtain information and permissions (such as domain and email access) necessary for FTF to perform the Services; and
- to confirm with the Client, the approach in which the Services are to be performed (such as the way the emails are written).
4.3 Thereafter, and subject to payment of the Fee (or any deposit required as may be advised in the Proposal, as the case may be), FTF shall commence with the provision of the Services to the Client as detailed in the Proposal, together with such varied or additional Services as may have been agreed to between the parties, subject to clause 8 below.
4.4 The Client is aware of, and accepts, that any ideas or intellectual property presented by FTF at any such consultation/s shall at all times remain the sole and exclusive property of FTF, and the Client shall have no right to use or disclose any such intellectual property without FTF’s express prior written permission.
5. GENERAL OBLIGATIONS OF FTF:
5.1 FTF undertakes to the Client that it will:
- render the Services in accordance with this Agreement and the Proposal and shall act in a manner as it reasonably considers to be the most beneficial to the interests of the Client;
- render the Services according to good industry practice and exercise the highest degree of due care, diligence and skill in the provision of the Services;
- respect, observe and adhere to all applicable laws and the rules of any applicable professional regulatory body related to the Services; and
- not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of the Client.
6. GENERAL OBLIGATIONS OF THE CLIENT
6.1 The Client warrants to FTF that it:
- will pay each invoice issued/the Fee in terms of clause 7 punctually and in full;
- will provide accurate and complete information to FTF as and when requested, and work collaboratively with FTF to ensure the highest quality delivery of the Services;
- will always provide FTF with relevant technological, server, computer and/or other technical tools within their system for FTF to provide the Services to it (specifically including but not limited to email account permissions, domain access and authorization, permission to communicate on behalf of the client via email to Prospects)
- will adhere to, and attend, any scheduled session or features of the Services, decided by the parties from time to time;
- will maintain, at all times, the highest degree of good faith toward FTF;
- will respect, observe and adhere to all applicable laws and the rules of any applicable professional regulatory body related to the Agreement; and
- will not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of FTF.
7. PAYMENT TERMS
7.1 Service Fee
- As consideration for the performance of the Services, the Client shall pay FTF the Fee.
- The Fee shall be paid by the Client to FTF in such instalments and on or before such due dates as may be set forth in the Proposal. It is specifically provided that the Fee is payable in advance of the provision of any Services.
- Where FTF stipulates in the Proposal that an initial tranche of the Fee is payable by the Client prior to the commencement of the Services, FTF shall be entitled to withhold performance of the Services until such time as the initial tranche of the Fee is paid in full.
- At least 10 (ten) days prior to the due date of any tranche of the Fee, FTF shall provide the Client with an invoice. The Client shall pay the amount stipulated in the invoice to FTF within 5 (five) days after receipt thereof, and in any event prior to the due date for such tranche as set out in the Proposal.
- All payments made by the Client to FTF shall be made via electronic funds transfer without deduction or set off for any reason whatsoever, into a bank account with such details as FTF may indicate in writing, or otherwise as stipulated in an invoice.
- All invoices exclude VAT, where applicable.
- Interest may be charged on any outstanding amounts owed by the Client to FTF for a period longer than 60 (sixty) calendar days from the date in which the Fee became due, at a rate of 2% (two percent), compounded monthly, in arrears. The Client undertakes to pay any such interest along with the Fee, where necessary.
- For clarity, and expressly agreed to and understood by the parties, until full and final payment of the Fee is made to FTF by the Client as required, all works and any rights thereto produced pursuant to the Services shall remain the exclusive property of FTF which the Client may not use without the express written permission of FTF.
8. VARIATIONS AND/OR ADDITIONS TO SERVICES AND DELAY OF THE SERVICES BY CLIENT
8. 1 Where the Client requires a variation of, or services in addition to, the Services received from FTF at any time before or during the provision of the Services, such variation or addition must:
- be in writing;
- detail the full specifications of the variation and/or addition; and
- be sent by the Client to FTF as soon as is reasonably practicable after discovering that such variations or additions are necessary.
8.2 In this event, FTF will then provide the Client with a distinct additional quote for such varied or additional services. If the Client does not accept the quote for the varied or additional Services, FTF will not be obliged to carry out the varied or additional Services.
8.3 If a Client causes unnecessary and/or obstructive delays regarding its obligations under this Agreement, or in providing FTF with any information, documentation, or data reasonably required by FTF for the performance of its Services in terms of this Agreement and the Proposal, and such delays are not the fault of FTF, the Client understands and agrees that FTF shall be entitled to demand full payment of any due and payable Fee or charge from the Client, notwithstanding that such Services have not yet been completed as required by the agreed date.
9. USE OF SUB-CONTRACTORS AND THIRD-PARTY TOOLS
9.1 FTF reserves the right to utilize sub-contractors for any of the rights or obligations contained in this Agreement, provided that such sub-contractors are bound to the same standard of service as FTF. Subject to the other terms of this Agreement, FTF will be responsible for the conduct of its chosen sub-contractors.
9.2 FTF reserves the right, at its sole expense, to employ the use of such third-party technology, software, or technical services (“tools”) as may be required for the proper performance of the Services. Where necessary and in its sole and exclusive discretion, FTF shall be entitled to assign rights to use any such third-party tools. The Client shall have no right to the use or enjoyment of any such third-party tools unless the rights are assigned to them by FTF as aforesaid, and FTF indemnifies the Client from any liability arising from the use thereof by FTF. Should the Client be granted rights to the use or enjoyment of third-party tools as aforesaid, the Client indemnifies FTF from any liability arising from its use thereof.
10. NON-SOLICITATION OF SUPPLIERS AND/OR EMPLOYEES
- Unless there has been prior agreement in writing between the parties, the Client agrees that it will not directly contact or attempt to contract any Suppliers or in any way attempt to circumvent FTF by procuring any item or service in respect of the Services directly from any Suppliers.
- The Client understands that any breach of this provision or any attempt to contract any of FTF’s Suppliers directly will cause financial damage to FTF, which will be recoverable by way of a claim for damages against the Client.
- In addition, the Client will not, during the term of this Agreement or for a period of 6 (six) calendar months following termination thereof, directly or indirectly solicit, employ or contract in any manner with any employee of FTF.
- In the event of a breach of clause 10.3, the Client will be liable to pay FTF a referral fee equivalent to 50% (fifty percent) of that employee’s annual remuneration package paid by FTF. The Client agrees that this referral fee is fair and reasonable and any reduction in the referral fee will be within FTF’s sole discretion.
11. INDEMNITY AND LIABILITY
11.1 Each party agrees to indemnify and hold the other harmless from and against any and all actions, claims, demands, proceedings or judgments (collectively “claims”) and any and all losses, liabilities, damages, costs, charges and expenses (collectively “losses”) of whatever nature and in whichever jurisdiction, which may be instituted, made or alleged against, or are suffered or incurred by a party relating to its own breach of obligations under this Agreement.
11.2 FTF provides business-related advice, content and solutions based on the information provided by the Client and therefore, apart from instances of fraud or gross negligence, FTF will not be liable for loss, damage or delay, including loss of profits or consequential loss, suffered by the Client as a result of FTF’s provision of the Services or negligence in respect thereof, including but not limited to the advice, content or solutions given by FTF based on the information provided by the Client.
11.3 The Client agrees to hold harmless and indemnify FTF against any losses, expenses or claims by any third party arising as a result of FTF’s provision of the Services.
12. CONSEQUENTIAL LOSS
12.1 Notwithstanding anything to the contrary contained in this Agreement, neither FTF nor its customers, employees, directors, office-bearers, shareholders, sub-contractors and/or related parties shall be liable to the Client, its customers, employees and contractors for any loss, damage or injury caused or sustained, save as may be occasioned as a direct result of any willful or grossly negligent act or omission on the part of FTF or its sub-contractors in the course and scope of the provision of the Services and provided always that FTF or its sub-contractors shall never be liable to the Client and/or its customers, employees and contractors in respect of consequential, indirect or special losses and/or damages (including loss of profits). In any event, FTF’s liability to the Client shall be limited to the proceeds of any insurance cover, if any, carried by FTF in relation to its liability arising in respect of the Services.
13.1 Either party (“the innocent party”) shall have the right, at its election, to terminate this Agreement forthwith by notice in writing to the other party (“the breaching party”) in the event that:
- the breaching party commits any breach or permits the commission of any breach of any material obligation or warranty contained in this Agreement and, in respect of such a breach capable of remedy, fails to remedy that breach within 5 (five) Business Days after the giving of written notice to that effect by the innocent party to the breaching party; or
- the breaching party repeatedly breaches any of the terms and/or conditions of this Agreement in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of this Agreement.
13.2 In the event of cancellation of this Agreement in the circumstances contemplated in this clause, written notice of any such cancellation shall be given and such cancellation shall take effect on the giving of such notice.
13.3 The cancellation of this Agreement or exercising of any right conferred by this clause shall be without prejudice to any claims hereunder then accrued or to any further or other rights or remedies of either party, whether under this Agreement or otherwise in law, and whether for damages or otherwise.
14. FORCE MAJEURE
14.1 If either party is prevented, whether in whole or in part, or delayed from performing any of its duties, functions or obligations under this Agreement, whether timeously or at all, due to an act of god (which for the purposes hereof shall mean war, political riots, civil commotions, legal prohibitions or restrictions, electrical load-shedding or surges, epidemic, pandemic, widespread disease, government-instituted lockdowns as a result of such epidemic, pandemic, or widespread disease, fire, floods, storms, earthquakes or other similar natural disasters), then such failure shall not constitute a breach under this Agreement, and the obligation to perform shall be suspended to the extent and during the continuance of such prevention provided that the parties shall use their reasonable commercial endeavours to minimise any delay occasioned thereby.
15. DATA PROCESSING
15.1 FTF understands and agrees that it may, during its provision of the Services, operate as a “processor” and/or “operator” of personal information, as defined in the Protection of Personal Information Act, 2013 (“POPI”) and/or the EU’s General Data Protection Regulation, 2017 (“GDPR”) respectively. As such, the Client is the “data controller” and/or “responsible party” over all data it may provide to FTF. For clarity, should FTF derive any data regarding any Data Subjects for the Client’s purposes, the Client shall be deemed to be the Responsible Party in relation to such data, notwithstanding the fact that FTF may have sourced such data.
15.2 Accordingly, FTF warrants that it shall adhere to all applicable duties and obligations of a “processor” and/or “operator” as defined and required under POPI and/or the GDPR respectively, as applicable, when processing any personal information it derives from the Client and/or its data subjects, pursuant to its provision of the Services. Similarly, the Client warrants that it shall adhere to all applicable duties and obligations of a “data controller” and/or “responsible party” as defined and required under POPI and/or the GDPR respectively, as applicable, when processing any personal information it derives from FTF and/or its data subjects.
15.3 Further, both parties expressly indemnify the other party against any third-party claims which may be brought against either party for the party’s failure to adhere to their duties as prescribed under GDPR/POPIA related to their role as either or both the relevant data controller and/or processor.
15.4 FTF is also aware that the Client is not necessarily the “Responsible Party” and/or the “Data Controller”, as defined by POPI or GDPR respectively, when processing the personal data of its customers or clients, and as such, FTF may be required to engage a third party to ensure that its duties under POPI and/or the GDPR are satisfied.
15.5 Should the Client have any additional particular terms and conditions relating to how exactly FTF must process personal information provided to it by the Client, such additional conditions of processing must be contained in a distinct Data Processing Agreement between the parties.
15.6 FTF also warrants to the Client that they have no criminal convictions or judgments recorded against them which relates to crimes relating to fraud, unlawful use of personal information or any crime related to illegal use or processing of personal information in any way,
15.7 FTF also understands and agrees that for data continuity and risk-mitigation purposes, should this agreement be terminated for any reason, and unless otherwise provided for in another data processing agreement between them and the Client, FTF will immediately cease all processing of personal data provided to them by the Client, as well as permanently delete/destroy any personal data of the Client’s on/within their systems. To assist each other in this process, the Client will provide FTF with whatever information or tools are needed in order to action this destruction as required.
16. INTELLECTUAL PROPERTY
16.1 FTF retains its copyright and moral rights in any and all literary and other work provided to the Client as part of the Services and any prior pitching or consulting stages, including but not limited to manuals, pitch ideas, raw ideas, example works, incomplete designs or content, data analytics, reporting mediums and methods, research. (“the Works”).
16.2 FTF grants the Client a non-transferable, irrevocable limited license to use the Works in furtherance of the full enjoyment of the Services by the Client, however, for clarity, the Works, in their original formats or in any other derivative formats, cannot be sold, altered, changed, licenced or used for commercial purposes by the Client for any reason without the prior written consent of FTF and which use will be subject to a license fee payable to FTF.
16.3 FTF shall and does hereby cede and assign all its right, title and interest in any details and/or information of any nature whatsoever relating to the Client, its clients, business, trade secrets and any other related data which may be stored in a database or other electronic format, produced for or on behalf of the Client by FTF in relation to or during the course of providing the Services contemplated by this Agreement (“Client’s Database Detail”), to the Client.
16.4 FTF shall, as soon as practicable after termination of this Agreement for whatsoever reason, deliver to the Client all and any Client’s Database Detail in a mutually agreed electronic format and shall destroy, delete and purge, as applicable, any Client’s Database Detail from its system.
17.1 Unless otherwise agreed to in advance, in writing, or except as expressly permitted by this Agreement, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party to its benefit or disclose any Confidential Information to any third party.
17.2 The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
17.3 Upon the termination or expiration of this Agreement for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.
18. DISPUTE RESOLUTION
18.1 Should any dispute or difference arise between the parties in relation to the provisions of the Services or the Agreement, either party shall notify the other party of such a dispute, and the parties shall meet within 7 (seven) Business Days of such notice and negotiate in good faith to resolve the dispute.
18.2 Should the parties fail to resolve such dispute or difference in the aforesaid manner or within such further period as the parties may agree to during their negotiation, either party shall be entitled to give notice of arbitration, provided that such notice shall not be given within 7 (seven) Business Days from the date that the parties first met as contemplated in clause 18.1 above.
18.3 The arbitration shall be held in accordance with the Commercial Arbitration Rules of Arbitration Foundation of Southern Africa (“AFSA”), by an arbitrator agreed upon between the parties, or, failing agreement within 7 (seven) Business Days, appointed by AFSA.
18.4 Unless otherwise agreed by the parties in writing, the arbitration shall be held in Cape Town, South Africa.
18.5 The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim against the infringing party.
19. SERVICE ADDRESS
19.1 The parties choose as their service address their respective addresses set out in this clause 19 for all purposes arising out of or in connection with this Agreement at which addresses all the processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the parties.
19.2 For the purpose of this Agreement, the parties’ respective addresses shall be:
- for FTF: 206 Fairweather House, 176 Sir Lowry Road, Woodstock, Cape Town, 7925; and
- for the Client as provided in the Proposal or at such other address, not being a post office box or poste restante, of which the party concerned may notify the other party in writing.
19.3 Any notice to a party sent:
- by prepaid registered post (or by airmail if appropriate) in a correctly addressed envelope to an address chosen as its service address to which post is delivered shall be deemed to have been received on the 10th (tenth) day after posting (unless the contrary is proved);
- delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its service address shall be deemed to have been received on the day of delivery; or
- sent by e-mail to its chosen e-mail address, shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
20.1 Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause whatsoever shall not release either party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.
20.2 Entire Agreement and Variation: No alteration, consensual cancellation, variation of, or addition to this Agreement shall be of any force or effect unless reduced to writing and signed by the duly authorized director/s of both parties. This Agreement contains the entire agreement between the parties and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
20.3 Counterparts: This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same document.
20.4 Indulgences: No indulgence, leniency or extension of time which FTF may grant or show to the Client shall operate as an estoppel or in any way prejudice or preclude FTF from exercising any of its rights in the future.
20.5 Governing Law: This Agreement shall be governed by and interpreted in accordance with the law of the Republic of South Africa. All disputes, actions and other matters in connection with this Agreement shall be determined in accordance with such law.
20.6 Invalidity: Any provision of this agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
20.7 Severability: Each undertaking in this Agreement shall be construed as a separate undertaking and if one or more of the undertakings contained in this Agreement is found to be unenforceable or in any way unreasonable the remaining undertakings shall continue to bind the parties. To the extent possible in any jurisdiction to which this Agreement may apply or in which this Agreement may be enforced, if any undertaking contained in this Agreement is found to be void but would be valid if the period of application thereof were reduced or if some part of the undertaking were deleted, the undertaking in question shall apply with such modification as may be necessary to make it valid and effective.
20. 8 Cumulative Rights and Remedies: The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.